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An Ontario judge has overturned the careless driving conviction of a driver who accidentally struck and killed a pedestrian at the side of the road after involuntarily closing his eyes during a coughing fit, causing him to lose control of his car.
Ottavio Ariganello was driving his car in the Town of Halton Hills in the Region of Halton on February 21, 2008. As he drove, he suffered an intense cough; his eyes closed, he was dizzy and lost control of his car within two to four seconds. He was travelling at 50 km-h.
His car veered off the roadway, colliding with Carolyn McTavish who was on the shoulder of the road retrieving her mail. McTavish died at the scene.
Ariganello got out of his car and dialled 911 as soon as he realized he had struck a pedestrian. The court heard evidence that he appeared to be in shock at the scene.
A justice of the peace found that Ariganello was guilty of careless driving. But the Ontario Court of Justice overturned the conviction, finding that the justice of the peace had misapprehended key aspects of the evidence.
“His Worship misapprehended that evidence when he concluded that the Appellant had likely ‘chosen’ to close his eyes in response to the coughing episode,” Ontario Court Justice Lesley M. Baldwin wrote. “There was nothing in the trial evidence to permit this inference.”
Baldwin further found that the justice of the peace erred in finding that the several seconds of driving was an extended period of driving. “No time period could be more fleeting than ‘several seconds,’” Baldwin wrote.
“I have no doubt that, but for the tragic accident that resulted in the death of a pedestrian who was retrieving her mail at the road side, a conviction would not have been registered in this case. This is a case of an involuntary physical reaction to a coughing/choking episode, which through no fault of the appellant [Ariganello], resulted in his eyes closing for a matter of seconds.”
